Webster, Clifford - Order, March 15, 2000

Order, March 15, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Article 17
of the New York State Environmental Conservation Law
and Parts 612 and 613 of Title 6 of the New York
Compilation of Codes, Rules and Regulations by

The New York State Department of Environmental Conservation (DEC or Department) staff has moved for an order without hearing pursuant to § 622.12 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR) before Administrative Law Judge (ALJ) Frank Montecalvo. ALJ Montecalvo has left the Office of Hearings and Mediation Services and ALJ Helene G. Goldberger was assigned to rule on this motion.

The attached ruling by ALJ Goldberger, incorporating by reference the prior rulings of ALJ Montecalvo, is adopted as my decision in this matter concerning violations of Article 17 of the Environmental Conservation Law (ECL) and Parts 612 and 613 of 6 NYCRR based upon Respondent's failure to register his petroleum bulk storage facility and perform tightness testing of the underground petroleum bulk storage tanks at this facility.

As stated in the ruling (attached), because the Respondent has not denied his failure to comply with the applicable regulations, 6 NYCRR §§ 612.2(b) and 613.5, he has failed to present any material facts in response to staff's motion that would create issues of triable fact in relation to his liability.

ECL § 71-1929 provides for a maximum penalty of twenty-five thousand dollars per day for each violation of titles 1 through 11 inclusive and title 19 of Article 17 and the implementing regulations. Staff has requested a penalty of ten thousand dollars based upon the Department's Petroleum Bulk Storage Enforcement Guidance Memorandum, Enforcement Directive No. 29 dated December 12, 1997, that provides for a penalty of one thousand dollars per tank for violations of 6 NYCRR § 613.5(a) and an additional penalty of one thousand dollars for violations of 6 NYCRR § 612.2. While the directive has expired, the guidance provided in the document is appropriate here. Based upon the Respondent's failure to test four tanks and to register one facility and the penalty analysis provided in the enforcement guidance, the penalty sum is $5,000.00. However, the staff recommended a higher penalty because of the Respondent's refusal to comply with the regulatory requirements over a period of three years that the Department staff asked him to address these violations. The ALJ concurred with staff's recommendation. The regulatory scheme that directs owners of bulk storage facilities to register and perform tightness testing on underground storage tanks is a necessary components to the State's efforts to ensure that petroleum does not pollute waters of the State. Accordingly, Respondent's violations are serious and I find the staff's requested penalty of $10,000 appropriate.

NOW, THEREFORE, having considered this matter, it is ORDERED that:

Respondent Clifford Webster is found to have violated 6 NYCRR §§ 612.2(b) and 613.5 for failing to register his petroleum bulk storage facility and to tightness test the underground storage tanks at the facility.

Respondent is liable for a penalty of $10,000 (ten thousand dollars) which is to be paid to the Department within thirty (30) days of the date of this order.

Within sixty (60) days of the date of this order, Respondent must register the facility and perform tightness testing of tanks 3 through 6 at the facility in accordance with 6 NYCRR §§ 612.2(b) and 613.5 or permanently close all the underground storage tanks in accordance with 6 NYCRR § 613.9(b).

Respondent shall grant access to the facility for Department staff to determine his compliance with the Environmental Conservation Law, the regulations, and this order.

The provisions, terms, and conditions of this order and the attached ruling shall bind the Respondent, his agents, servants, employees, successors, and assigns and all persons, firms, and corporation acting for or on behalf of the Respondent.

All communications between the Respondent and the Department with respect to this matter shall be made to the Department's Region 6 Director, 317 Washington Street, Watertown, New York 13601.

For the New York State Department
of Environmental Conservation
/s/
By: John P. Cahill, Commissioner

In the Matter of the Alleged Violations of Article 17
of the New York State Environmental Conservation Law
and Parts 612 and 613 of Title 6 of the New York
Compilation of Codes, Rules and Regulations by

Proceedings

The Region 6 staff of the New York State Department of Environmental Conservation commenced this enforcement proceeding by service of a notice of motion for order without hearing dated September 30, 1999 upon the respondent, Clifford Webster, pursuant to § 622.12 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR). The staff alleges that the respondent is in violation of 6 NYCRR §§ 612.2(b) and 613.5 for failure to register his petroleum bulk storage facility and to perform tightness tests of the underground storage tanks.

In response to staff's motion, respondent submitted an answer dated November 19, 1999 in which he contends that the site was closed as a petroleum storage facility approximately thirty years ago and hence is not subject to the Department's regulations. Administrative Law Judge (ALJ) Frank Montecalvo made certain findings of fact and also issued an order of continuance dated January 7, 2000 in which he asked the parties to brief the issue of whether the " legislature intended to impose registration and testing requirements on tanks or combinations thereof that existed at the time of the legislation but did not at that time or later contain or store 1,100 gallons of petroleum."(1) In response, the staff submitted a brief dated January 27, 2000 and the respondent submitted a brief dated February 4, 2000.

Staff's Position

The staff argues that the respondent's facility is subject to the requirements of Parts 612 through 614 because the Legislature has conveyed broad authority to the Department to promulgate regulations governing the storage of liquids likely to pollute the waters of the State. The staff cites to Consolidated Edison Company of New York, Inc. v. Department of Environmental Conservation, 71 NY2d 186 (1988) in which the Court of Appeals held that the enactment of the 1983 Act was not an express modification of DEC's broad regulatory powers under the ECL or the 1977 Act to regulate the storage of petroleum and other liquids, regardless of the type of facility is involved. The staff points to the court's conclusion that no conflict exists between ECL § 17-0303 that gives the Commissioner powers to make, amend, and repeal regulations for the storage of liquids likely to pollute waters and ECL § 17-1001. In ECL § 17-1001 the Legislature declared spills and leaks a threat to the public welfare and required a petroleum bulk storage code for new and substantially modified facilities.

Respondent's Position

The respondent argues that because ECL § 17-1003 defines facility in terms that suggest current storage and that law is set forth as the statutory authority for Part 612, it is the definition in that statute that governs. Respondent Webster contends that the Department is improperly attempting to redefine its jurisdiction by defining facility differently in Part 612. The respondent further argues because the Legislature has the sole power to make the laws and that it never intended for existing facilities to be governed by Title 10 (ECL § 17-1001, et seq.), DEC has no authority to require registration of facilities that are not new or substantially modified. Respondent Webster distinguishes the Consolidated Edison case from the facts at issue here by finding that the case did not address non-major facilities "that have not stored petroleum for approximately 30 years". The respondent finds the intent of the Legislature was to regulate industries that are involved in the storage and handling of liquids that could pollute.

The respondent's second argument is that the Department is attempting to retroactively enforce registration of facilities that existed prior to the regulations' enactment. Mr. Webster contends that because 6 NYCRR § 613.1(f) includes a provision for criminal penalties, it is an unconstitutional ex post facto requirement pursuant to Article 1, Sections 9 and 10 of the U.S. Constitution.

Discussion

The Court of Appeals has spoken directly to the Department's jurisdiction to promulgate regulations to govern a broad range of bulk storage facilities in the Consolidated Edison case. While Navigation Law § 170 (the Oil Spill Prevention, Control and Compensation Act of 1977) addressed major petroleum bulk storage facilities and ECL § 17-1001 (the 1983 Control of the Bulk Storage of Petroleum Act) was intended to govern new or substantially modified nonmajor facilities, the court found that the Department's promulgation of regulations that also address preexisting non-major facilities was lawful. The court found that based upon the Legislature's mandate to DEC to prevent liquid pollution generally, these regulations were entirely appropriate "regardless of the type of facility involved." Id. at 193. See, ECL §§ 1-0101(1), 3-0301(1)(m), 17-0101(2),and 17-0303(3).

With respect to respondent's constitutional argument, the Department is neither seeking criminal penalties nor is it attempting to enforce the regulations for actions prior to their promulgation. Rather, as part of its efforts to ensure that underground petroleum storage facilities are not leaking oil into the groundwaters of the State, the Department is requiring that the respondent register the tanks and perform the necessary tightness testing. Furthermore, in both of his arguments, the respondent is asking the ALJ to declare the Department's regulations unlawful and that is not within the powers of an administrative law judge.

Because the respondent does not contest that he owns the tanks in question and has neither registered them nor performed the required tank testing, it is unnecessary to hold a hearing to ascertain his liability pursuant to 6 NYCRR §§ 612.2(b) and 613.5(a)(1). ALJ Montecalvo set forth in his decision of January 7, 2000 the findings of fact that I incorporate by reference herein. Accordingly, I conclude that the staff's motion should be granted and the respondent is liable for violating 6 NYCRR §§ 612.2(b) and 613.5(a)(1).

With respect to the staff's penalty calculation, , ECL § 71-1929 provides for a penalty of up to $25,000 per day for each day of violation of Title 10 of Article 17 in addition to injunctive relief. The Petroleum Bulk Storage Enforcement Guidance Memorandum, Enforcement Directive No. 29, dated December 12, 1997, provides for a penalty of one thousand dollars per tank for violations of Part 613 and an additional penalty of one thousand dollars for violation of Part 612.(2) Accordingly, the base penalty would be $5,000 for failure to test four tanks and failure to register. However, as noted by staff, the directive and the 1990 Civil Penalty Policy does provide for an increase in penalties where there are appropriate circumstances. Here, the respondent has ignored the Department's request for his compliance with the regulations over three years. Accordingly, I find the staff's request for a $10,000 penalty appropriate.

CONCLUSION

I recommend that the staff's motion for order without hearing be granted and that the respondent be required to pay a penalty of $10,000 and that he also be required to register the facility and tightness test tanks 3-6 inclusively at the facility or permanently close all tanks at the facility in accordance with 6 NYCRR § 613.9(b) within thirty days of the Commissioner's order.